Online Safety Bill - Update On Senior Manager Liability

• Law Firm: WilmerHale
• Subject Matter: Corporate/Commercial Law, Criminal Law, Corporate and Company Law, White Collar Crime, Anti-Corruption & Fraud
• Author: Lindsey Cullen
• Published date: 01 February 2023

The Online Safety Bill (the "OSB") is back on the UK Government's legislative agenda, this time with an important update relating to criminal liability of senior managers. Following some political wrangling, back-bench MPs have successfully pressured the Government to expand the scope of criminal liability for senior managers of regulated services that fail to protect children online.

A change of approach

We wrote previously about the OSB's proposed narrow scope of criminal liability for senior managers. In the bill's previous iteration, senior managers were criminally liable only if their company failed to respond properly to information requests from the regulator, Ofcom.

By mid-January 2023, however, the issue of senior manager criminal liability in the OSB had become a hot topic for MPs, and a proposed amendment had gained the backing of nearly 50 back-bench MPs. This amendment would have created criminal liability for senior managers where the regulated service failed to comply with safety duties in the OSB that aim to protect children online, and where the offence was committed with a senior manager's "consent or connivance" or if it was "attributable to [their] neglect".

Under pressure, the Government confirmed in a statement on 17 January 2023 that the next draft of the OSB will include expanded criminal liability for senior managers.

What will criminal liability in the new OSB look like?

The amended senior manager criminal liability clauses of the OSB have not yet been put forward, but the Government's statement provides some clues as to what these might look like.

First, the statement confirmed that the updated OSB will introduce liability for senior managers who "have consented or connived in ignoring enforceable requirements, risking serious harm to children". The idea of "serious harm" is new; the back-benchers' amendment did not specify the level of harm required to trigger criminal liability. Notably, while "consented or connived" is taken from the back-benchers' amendment, the Government's statement does not mention "neglect".

Second, the statement asserts that the new amendment will be based on the Irish Online Safety and Media Regulation Act 2022 (the "Irish Act"). Under the Irish Act, an appointed "Online Safety Commissioner" can determine that a regulated company has not complied with binding "online safety codes" and issue a notice specifying the steps that the company must take to rectify its non-compliance. Senior managers can be...